Oregon Occupational Safety & Health Division ) Docket No: SH-95020 Plaintiff, ) Citation No. M6281-048-94 ) JOHNSON TRENCHING, ) ) Defendant. ) OPINION AND ORDER Pursuant to notice, a hearing was held in the above matter on December 7, 1995, in Salem, Oregon, before Administrative Law Judge Donna Garaventa. The plaintiff, Oregon Occupational Safety & Health Division (hereinafter OR-OSHA), was represented by Rochelle A. Nedeau. The defendant, Johnson Trenching, did not appear either personally or through a representative. The proceedings were recorded by Marlene Cromwell of Business Support Services. The record was closed on December 7, 1995. No affected employees elected to appear as parties pursuant to OAR 438-85-411. This is a contested case under the Oregon Safe Employment Act, ORS 654.001 to ORS 654.991.
Exhibits 1 through 9 were received into evidence.
Whether or not Defendant violated OAR 327-03-420(1).
On June 8, 1994, Michael Mitchell, a senior safety compliance officer for OR-OSHA, performed a safety inspection of an excavation worksite at the 500 block of Ferry St. SE, Salem, Oregon. The weather was bright and sunny. Mitchell approached the site, identified himself, and conducted an opening conference with the lead worker. The excavation was being performed on the sidewalk adjacent to the street. Approximately 50 feet in advance of the excavation site there was a controlled intersection. A backhoe and a truck were in the parking lane of the street. They were not obstructing traffic. Cones were positioned around the truck. There were no warning signs placed in the street to provide advance warning to motorists that work was being done. The owner of the company, Archie Johnson, arrived on the site at the beginning of the closing conference and was visibly upset by the presence of the compliance officer. Mr. Mitchell advised Mr. Johnson that the only violation was the failure to have warning signs in the roadway, and Johnson assured Mitchell that he would have them in place the following day. After the closing conference was completed, Mitchell left the site. In determining the classification of the violation, Mitchell noted that injuries resulting from an accident caused by the violation would probably be minor, or less than serious, because the operation was taking place on the sidewalk rather than the street and the workers were protected by the positioning of the vehicles in the street adjacent to the curb near the work being done. Probability of an injury occurring was rated as low because of the particular circumstances in this case. No penalty was assessed for the violation.
OR-OSHA has the burden of establishing that the employer violated OAR 438-03-420(1) at the job site on June 8, 1994. OAR 437-03-420(1) provides:
"Adequate and appropriate traffic controls shall be provided for all operations on or adjacent to a highway, street, or railway. The traffic controls shall conform to the American National Standards Institute (ANSI) D6.1c-1989: Manual on Uniform Traffic Control Devices for Streets and Highways."
Section 6B-12 of the U.S. Department of Transportation Federal Highway Administration Manual on Uniform Traffic Control Devices for Streets and Highways states,
"Warning signs for construction and maintenance projects are used to notify drivers of specific hazards which may be encountered, when those operations are underway. Within the construction zone there may be a variety of temporary roadway facilities. Pavement width may be reduced. Open excavations may be present in or near the roadway, or travel across an unpaved section may be required. Drivers should be properly alerted to possible dangers ahead in sufficient time to adjust their speed for the hazard."
Determination of the issue in this case requires identification of the specific hazards to traffic caused by the operation and whether or not "adequate and appropriate" traffic controls were provided to protect against the hazards. OR-OSHA identified the hazard as a danger created by vehicles entering traffic when leaving the excavation site. However, in his notes, the compliance officer noted that there were "no obstructions at all to traffic." (Ex. 5-2). Those notes were confirmed by the videotape made by the compliance officer at the scene. (Ex. 6). The two vehicles, a truck and a backhoe, were parked in the parking lane beside the excavation. There was no showing that the hazard created by any construction vehicles leaving the site from a parking space would be any greater than that caused by a regular vehicle entering traffic from a parking space. Even if the presence of the vehicles in the parking lane was considered to have created a hazard, I find that the traffic controls used by the employer in this situation were adequate and appropriate. A traffic light controlled traffic one-half block to the east, which, according to Mitchell, reduced the risk of vehicles speeding past the excavation site. The signal also provided breaks in traffic to allow the dump truck to enter the traffic lanes safely. Finally, cones were positioned around the construction vehicles parked in the parking lane, providing a caution warning to motorists that activity was occurring in the area. Considering that traffic was not being obstructed by the excavation, that a traffic signal just prior to the operation controlled traffic near the site, and that cones were placed around the vehicle parked in the street, I find that the traffic controls were adequate and reasonable and that the prior warning suggested by the compliance officer (signs posted 200 to 250 feet in advance of the site and 200 to 250 feet before that) was not necessary. I conclude that OR-OSHA has not met its burden of establishing a violation of OAR 438-03-420(1). Accordingly, Item 1-1 of the citation will be set aside and the citation dismissed.
NOW, THEREFORE, IT IS HEREBY ORDERED Item 1-1 of Citation No. M6218-048-94, issued August 10, 1994, which found a violation of OAR 437-03-420(1) and imposed a penalty of $0.00, is set aside and the Citation is dismissed. Notice to all parties: You are entitled to judicial review of this Order. Proceedings for review are to be instituted by filing a petition in the Court of Appeals, Supreme Court Building, Salem, Oregon 97310, within 60 days following the date this Order is entered and served as shown hereon. The procedure for such judicial review is prescribed by ORS 183.480 and ORS 183.482. Entered at Salem, Oregon, December 13, 1995 Workers' Compensation Board Donna Garaventa, ALJ